When Federalism Slams Up Against Social Conservatism

In the wake of the Obama administration’s announcement that it will no longer defend Section 3 of DOMA in court, wingnut reactions have been humorous [find some fun ones here], but one of the most significant things about it is, and what really makes the law unconstitutional, is that it takes away the states’ powers to define marriage as they see fit. Now, granted, we on the liberal side of the spectrum believe that something as essential as marriage equality should be a federal issue, but as it is, states define marriage and the government recognizes them. So this is one of those rare occasions I’ll link to a piece at Reason because I actually find it interesting:

President Barack Obama has been denounced by Republicans for asserting federal power at the expense of state sovereignty. But last week, he was denounced by Republicans for … not asserting federal power at the expense of state sovereignty.

It happened after the Justice Department announced it would not litigate to uphold the Defense of Marriage Act (DOMA). The president thinks one section of the law is unconstitutional—a section that prohibits the federal government from recognizing same-sex marriages.

[…]

If DOMA were to be struck down, the federal government would no longer insist that some marriages transacted under state laws are valid and some are not. It would tell states: You decide who can get married, and we’ll abide by your judgment.

You want to let gays walk down the aisle? Knock yourself out. You want to deny them the joys of matrimony? Be our guest.

Such deference has always been the norm. There’s a range of matrimonial policies between Hartford and Honolulu. Some states allow 14-year-olds to wed with parental and judicial consent, and others don’t allow marriage until age 17 no matter what. Some states let first cousins get married, and some don’t. Some states used to forbid a black person from marrying a white person.

The federal government has never gotten mixed up in deciding which states are right and which are wrong. It has always had a simple rule: Show us the marriage certificate.

Until same-sex unions came along, that is.

I find this amusing because fundamentalist wingnuts are so particularly fond of drooling over their pocket Constitutions, which they see as more of an accessory than an educational resource, but they truly have no idea what’s in it. Meanwhile, they’ve been allied with other sorts of Republicans, specifically the kind that writes for Reason, and all of the social conservatives’ supposed love and respect for the US Constitution is being exposed as little more than a mantra, intended to make them feel like the Real Murkins.

I disagree with the writer’s later contention that states’ rights should still come into play, giving, for instance, Texas the right to refuse to acknowledge a same-sex marriage in New Hampshire, simply because people are so much more mobile these days, rendering such laws impractical. Under such a scenario, one assumes, a couple who married in New Hampshire, and who was afforded all the rights, state and federal, thereof, and then moved to Texas, would lose all of their rights upon that move? Fortunately [unfortunately, for the Reason writer], this is actually not how Full Faith & Credit works. Under that clause, states recognize each others’ contracts. For instance, the writer brings up the example of differing state laws as to age of marital consent:

There’s a range of matrimonial policies between Hartford and Honolulu. Some states allow 14-year-olds to wed with parental and judicial consent, and others don’t allow marriage until age 17 no matter what. Some states let first cousins get married, and some don’t.

What he does not mention here [because it would win the legal argument for OUR side] is that if a young couple marries in a state with lower consent laws, and then moves to a state where the age requirements are higher, that state still recognizes the original state’s contract.

That is why DOMA flies in the face of Full Faith & Credit on two fronts, and why Barack Obama, as a constitutional law professor, and his Justice Department rightly recognize the law as flatly unconstitutional.

Still, it’s entertaining to watch libertarians and social conservatives fight over this.

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